Dáil Éireann - Volume 67 - 03 June, 1937

Bunreacht na hEireann (Dréacht)—Coiste (d'ath-thógaint).

AIRTEAGAIL 40.

Mr. Dillon: I understand that the President intends to consider the matters raised on these amendments between now and Report Stage.

The President: I have already indicated that I was prepared to consider Deputy MacDermot's amendment in [1728] that connection. Deputy Costello made certain points which I will look into.

Mr. Dillon: The best thing to do is to withdraw these amendments.

The President: What we will do is, we will have an amendment on Report incorporating any of the points I can meet. In particular, I will have an amendment to deal with Deputy MacDermot's position, and if there is any point in the matter raised by Deputy Costello I may be able to get that question of the authority of the State so arranged that the possibility he indicated will no longer exist.

Mr. Dillon: In the absence of Deputy Costello, I propose to withdraw this amendment No. 120, reserving the right to put it down on Report Stage, if it is desired to divide on it.

An Ceann Comhairle: Amendments Nos. 120, 121 and 122 were discussed together. Are they being withdrawn?

Mr. Norton: I propose to divide on amendment No. 121.

Question put: “That the words proposed to be deleted stand.”

The Committee divided: Tá, 48; Níl, 35.

Aiken, Frank.

Allen, Denis.

Bartley, Gerald.

Boland, Gerald.

Boland, Patrick.

Brady, Seán.

Briscoe, Robert.

Browne, William Frazer.

Carty, Frank.

Concannon, Helena.

Cooney, Eamonn.

Corkery, Daniel.

Crowley, Timothy.

Derrig, Thomas.

De Valera, Eamon.

Flynn, Stephen.

Fogarty, Andrew.

Good, John.

Goulding, John.

Harris, Thomas.

Haslett, Alexander.

Hayes, Seán.

Kelly, James Patrick.

Kelly, Thomas.

Kilroy, Michael.

Kissane, Eamonn.

Little, Patrick John.

MacDermot, Frank.

McEntee, Seán.

Maguire, Ben.

Moane, Edward.

Moore, Séamus.

Moylan, Seán.

Neilan, Martin.

O Briain, Donnchadh.

O'Grady, Seán.

O'Reilly, Matthew.

Pearse, Margaret Mary.

Rice, Edward.

Ruttledge, Patrick Joseph.

Ryan, James.

Ryan, Martin.

Ryan, Robert.

Sheridan, Michael.

Smith, Patrick.

Victory, James.

Walsh, Richard.

Ward, Francis C.

[1729][1730]

Níl

Anthony, Richard.

Beckett, James Walter.

Bennett, George Cecil.

Corish, Richard.

Cosgrave, William T.

Davin, William.

Desmond, William.

Dillon, James M.

Dockrell, Henry Morgan.

Doyle, Peadar S.

Everett, James.

Fagan, Charles.

Fitzgerald, Desmond.

Fitzgerald-Kenney, James.

Hogan, Patrick (Clare).

Holohan, Richard.

Keating, John.

Keyes, Michael.

Lynch, Finian.

McFadden, Michael Og.

McGilligan, Patrick.

McGovern, Patrick.

Minch, Sydney B.

Morrissey, Daniel.

Murphy, James Edward.

Murphy, Timothy Joseph.

Nally, Martin.

Norton, William.

O'Higgins, Thomas Francis.

O'Leary, Daniel.

O'Neill, Eamonn.

O'Sullivan, John Marcus.

Pattison, James P.

Reidy, James.

Roddy, Martin.

Tellers:-Tá: Deputies Little and Smith; Níl: Deputies P. Murphy and Corish.

Question declared carried.

Amendment No. 122 not moved.

Mr. McGilligan: I move amendment No. 123, as on the Order Paper:

In Section 6, sub-section 1º (ii), page 86, to delete from and including the words “Laws, however may be enacted to prevent or control meetings”, down to and including the words “House of the Oireachtas”.

This is the form in which the amendment was originally sent in. It appears on the amendment paper in the form in which it is, through mistake. In this amendment, an attempt is being made to effect what was also aimed at in the last amendment—to have the principle definitely and clearly enunciated and to take away the limitations which are imposed on the principle after it has been stated. I have argued before that even the turn of phrase that has been adopted and the emphasis laid on the exception would make me move, if there were no other reasons, to have some change made in the presentation of the exceptions, if there are to be any exceptions. As the Article stands, you have certain matters guaranteed. The guarantee is all the time under and subject to public order and morality but, in addition to that, laws may be enacted to prevent or control meetings which are calculated to cause a breach of the peace or to be a danger or nuisance to the general public. I understand that the law, as decided by cases, at present enables any meeting which tends towards a breach of the peace to be controlled, because the right is subject to public order. I do not know what this new phrase about being a “nuisance to the general public” means. If there is to be any expression of a principle guaranteeing the right to assemble peaceably and without arms, we should not encroach on that right by the enactment of such a vague phrase as might be interpreted in a very peculiar way, indeed. You may prevent—you may also control—meetings if they are calculated to be a nuisance to the general public. There is no necessity to enlarge on the dangers which must immediately start to the mind by getting that phrase put into the context. The Government sets out solemnly to give a right to peaceable assembly and assembly without arms.

They seek to have that right controlled by and subject to public order and morality and to weaken it still further by providing that laws may be enacted to prevent meetings if they are calculated to be a nuisance to the general public. If that phrase is to be put in, it would be better to leave this constitutional right in the air. The emphasis laid on the exceptions takes away any value there may be in the statement of the principle.

Then the Draft goes on further to say: “Laws may be enacted for the regulation and control of open air meetings so as to ensure that they will not interfere unduly with public convenience and for the prohibition or regulation of meetings in the vicinity [1731] of the place of meeting of either House of the Oireachtas.” We have had certain experience both of public meetings spontaneously gathered and public meetings engineered for special purposes. Can it be said that in such experience, in the 15 years the State has been running, of meetings called in the vicinity of the meeting-place of either House of the Oireachtas there is anything which makes it imperative that the Constitution should contain a phrase enabling laws to be passed for this purpose? Again, if it is not possible, under the general restriction of public order and morality, to pass laws to regulate public meetings in the way of ensuring that they will not interfere unduly with public convenience, there should be some explicit statement of how far it is intended this exception should be pushed. I call attention again in that context to the generality of the language—“laws may be enacted for the regulation and control”. If it is possible to pass a law for control, the control may be exercised to such a point as to result in prohibition. Is it thought to be compatible with the general statement about assembling peaceably for the expression of opinion that laws could be so enacted as to prevent meetings on the ground that they interfered with public convenience? I think the statement of all these exceptions, when they are analysed, goes to show very definitely that the statement of the principle is only put in because it is not considered politic at this time to limit the right of public meeting, as the President would like to have it done. The statement of principle, flanked by these exceptions, is not worth the paper it is written on.

The President: I do not think it is necessary to repeat what I said in connection with this clause on a previous amendment, namely, that the purpose here is not to allow these exceptions to lie in some law reports, but to indicate clearly to citizens who read the Constitution that the right of public assembly peaceably and without arms is guaranteed to them. The right of public assembly is a natural right, but here there is an indication to show that laws may be enacted to safeguard the State from the improper use of that [1732] right, and I think it is all to the good that that should be stated explicitly.

Mr. Dillon: When the President uncivilly interrupted me this evening, I was labouring this very point. Here we have the frills and the furbelows which the President has seen fit, in the silence of his own room, to drape around a constitutional right which is becoming so gravely menaced. How do you assert your constitutional right? As I see it, the way in which we would assert it in regard to this particular Article is that, if we were prosecuted under an Act of Parliament which had been enacted for doing a certain thing which we held we were entitled to do under the general principle of “the right of the citizens to assemble peaceably and without arms,” we would plead that, even if we had committed an offence against the Act of Parliament cited against us, it had no validity inasmuch as it purported to take away from us the right of the citizen to assemble peaceably without arms guaranteed under Article 40 that we are now discussing. The reply of the State to that would be: “We admit that right was guaranteed, but we direct the attention of the Court to the following reservations, and the State would argue that these reservations were not put in for the purpose of telling Tom Smith of Ballydehob what the meaning of the Constitution was, but that they were enshrined in the fundamental law for the direction of the courts: to ensure that no citizen would plead the bare words of the Constitution for the purpose of misleading the “courts.” Surely I am right in saying that all that is in the Constitution is there for the direction of the courts when the courts come to stand between the citizen and the Executive.

It is idle for the President to get up and say these words are not in the Constitution for the purpose of finding their way into the law reports: that they are being put into the Constitution in order to inform the plain people of the meaning of the document that we are considering. You cannot put words into the body of a Constitution to explain to the plain people the technical meaning of the Articles of a Constitution, and you ought not to try to do it. If you desire, and you should [1733] desire, to inform the people most exhaustively of all the implications of the Constitution, the way to do that is to go out to the country and make speeches about each separate Article, if you think the people are interested in it, or else send out to the people pamphlets explaining each Article to them. But every word that is incorporated in this Constitution will get its significance when it is tested in a court of law by a citizen who is defending himself from some unjustifiable tyranny which is attempted against him either by the State or by his neighbour.

What I urge on the President is this: that you cannot apply to this document the ordinary rules of colloquial interpretation because those are not the rules of interpretation that will be applied to it when this Constitution matters to an individual citizen of the State. Is there any danger in this day and age to give the citizens of this country the right to assemble peaceably and without arms without qualification? I do not see any danger whatever arising. If citizens assemble peaceably, and I do not see how they could assemble peaceably if they were to assemble contrary to “public order and public morality”, but even if they managed to do that, the opening words of Section 6 govern the whole paragraph, so that it is quite open to the State to say: “While we admit that the citizen's exterior conduct was peaceable, and while we admit that he bore no arms, the reason we prosecute and the reason we enact this law is because we propose to prove that his purpose in assembling was contrary to ‘public order and morality,’ and in so far as that is true we legislate against him, and it is in so far as that is true that we now prosecute him.” But if you so qualify it, as Deputy McGilligan has pointed out, you virtually take away from him the right to assemble peaceably and without arms.

Remember, if you put nothing in the Constitution at all, there is no law in this country to prevent people meeting solemnly together. There is no law in Great Britain giving people the absolute right to do it, but there is an unwritten convention that the historic [1734] liberties of the British people include the right to assemble and protest provided they do not seek to overthrow the State by violence. In this country, in the absence of a direct negation of that, that right obtains. I do not argue against the State setting out the right if you are going to have a written Constitution, but what I do submit is, that if you deem it expedient to set out the right in so many words, set it out without reservations other than the reservation contained in the first paragraph relating to “public order and morality”. If you set it out with these reservations, then, far from enlarging the fundamental rights of the citizen, you are going, in practice, when this Constitution comes to be impleaded in the courts of law, and the courts of law are the only place where this Constitution can be of any use to anybody, instead of guaranteeing rights by the terms of this Constitution you are going gravely to limit them. I do not believe that is the intention of the President. But this throws a flood of light on his attitude to this whole Constitution. The qualifying words which are complained of are not intended, he says, to moulder in the law reports but to inform the ordinary citizen of the meaning of the general statement. If that is the purpose of those words, then they ought not to appear in the body of this document. It is no place for them. This document must be interpreted for the citizen in the courts of law. If you want to explain it to the individual citizen go and do so on the hustings or by means of pamphlets.

Mr. Norton: I take it that when construing the rights set out for the ordinary citizen in this Section of Article 40, we must constantly have advertence to the fact that the overriding restriction on all the liberties which are supposed to be guaranteed is that they are subject to “public order and morality.” It seems to me, therefore, as I said on a previous amendment, that it is quite unnecessary for the President to carry right through this section a catalogue of restrictions which, far from enhancing the rights which it purports to convey, in fact seriously restricts the value of those rights, and actually raises the [1735] question whether we are not, in fact, cutting down rights as they exist at the present time.

We have had a long discussion as to the widespread character of the phrase “public order and morality” in Section 6 (1). Many speakers have emphasised the fact that these two provisions are reasonably restrictive without imposing any other restrictions such as are set out in Section 1 of the Article. Apparently, however, not satisfied with setting out very definite and widespread restrictions in the first part of Section 6, the President goes on even to intensify these restrictions in the section we are now discussing. He sets out a declaration to the effect that one of the rights guaranteed to citizens is the right to assemble peaceably and without arms. That is a right which, as far as citizens are concerned, always has been interpreted as a natural right: something which they had a right to exercise inherently and something which the Legislature up to the present has never deemed it desirable to interfere with. Here in this country where we are so prone to wreck the meetings of our political opponents, and where organised violence is allowed relatively free rein to carry out that kind of wrecking policy at public meetings, one would imagine that such a phrase as would follow the guarantee of the right of citizens to assemble peaceably and without arms would be one which would indicate that laws would be passed to ensure this. Instead, however, what we are doing is: we are setting out a declaration giving the citizens the right to assemble peacefully and without arms, and then we are going to have at the same time, if we so desire, laws to prevent or control meetings which are calculated to cause a breach of the peace or to be a danger or nuisance to the general public.

I should like to direct particular attention to the provision “to prevent” in this sub-section. It says that laws may be passed to prevent meetings—not meetings which are a breach of the peace or which are a danger or a nuisance to the general public, but meetings which are calculated to cause a breach of the peace, [1736] which are calculated to be a danger, or which are calculated to be a public nuisance. That seems to me to presuppose the enactment of legislation giving to the Government and to the State a widespread power of proscription over meetings which citizens may desire to hold.

Mind you, it is not necessary that anybody should be satisfied that a breach of the peace or a danger or a public nuisance may occur. All that is necessary is that somebody should be satisfied that a meeting is calculated to cause a breach of the peace or to be a danger and a public nuisance, and, of course, it is quite easy for any Minister to state, in the language of an official proclamation, that he believes that the holding of a meeting of a particular kind is calculated to lead to a breach of the peace or to be a nuisance or a danger. Unfortunately, most of our large political meetings—particularly at election times—are calculated to be a nuisance. Most of them are calculated to be a danger. Not an inconsiderable number of them are calculated to lead to a breach of the peace; and if an Executive Council is going to draw up a law adhering rigidly to the phraseology used in this section, then we might reach a stage—because we must have advertence to these three factors— where it would be almost impossible to hold any meetings, because almost any meeting in the height of an election is calculated to give rise to one or other of the difficulties set out in this particular section.

Whether intended or not, I think that this is a very definite attempt to restrict the right of the citizens to hold public meetings. One might understand a provision that laws may be enacted to control meetings, thereby ensuring that the State would use such forces as are at its command to prevent, for instance, a meeting developing into a riot; but where the State takes power to prevent a meeting from being held, it seems to me to be an unwarranted invasion of the rights which citizens at present have. I suggest to the President that the manner in which this particular [1737] section is phrased is, in his own language, calculated to give the Executive Government of the day a power which they ought not to get; that it ought to be sufficient if there is power to control meetings—not to control them in the interests of the people who want to break them up, but to control them in the interests of citizens who want to assemble peaceably and to express their views. Instead of that there is power to prevent a meeting, which means that if, for example, a number of law-abiding people propose to hold a meeting in the City of Dublin and it appears to the Executive Council that somebody is going there to break up the meeting and that their intentions may lead to a breach of the peace, or that they may be a nuisance to pedestrians or motor-car users in the vicinity of the meeting, then there is power to prevent the holding of the meeting, and in fact there is what amounts to a concession to those who want to obstruct the holding of the meeting. I suggest that the President should look at this section again with a view to seeing that it does not give power to prevent meetings on the flimsy grounds set out here.

Mr. MacDermot: I see nothing to object to in this. It seems to me that occasions do arise when it is the duty of the Government to prevent meetings. I am rather particularly surprised that Deputy Norton should appear to challenge that principle, because there have been occasions when Labour Parties have been particularly active to support that principle. I wonder, for example, if, at the time Sir Oswald Mosley was trying to hold Fascist meetings in the Jewish quarters in Whitechapel, Deputy Norton would take the view that such meetings should not be prevented.

Mr. Norton: Give us an Irish example. This is an Irish Constitution, so give us an Irish example of it.

Mr. MacDermot: The nationality of the illustration has nothing to do with the case. I can take my illustration from Paris, too.

[1738] Mr. McGilligan: Well, it would be a change to get one, instead of always getting an English example.

Mr. MacDermot: I am afraid I am not going to gratify Deputy McGilligan by avoiding English examples, because they are better known to this House.

Mr. Norton: Give us an Irish example.

Mr. MacDermot: The real objection to this example is, not that it is English, but that it is apposite. That is the real objection to it. It is an illustration of the sort of danger that can be created by giving an unlimited right to hold public meetings. Once again Deputy Norton has argued as if the main protection against tyranny of every kind lay in the terms of a written Constitution. It does not. If the time came that a Government was using its powers illegitimately, those of us who do not think such provisions as these dangerous would be as strong in our criticism of the Government as Deputy Norton himself could possibly be. As I see it, the main point of these qualifications here is that if you left the sentence, “The right of the citizens to assemble peaceably and without arms,” by itself——

Mr. Norton: Governed by public order and morality. You have that in the beginning of the sub-section.

Mr. MacDermot: Well, even governed by public order and morality, it might be maintained that laws that were called for by special emergency were unconstitutional.

Mr. McGilligan: That is right. That is the very thing we want to stop—the passing of laws which would not be governed by the phrase “subject to public order and morality.”

Mr. MacDermot: I will admit that the phrase “public order and morality” goes a very long way to satisfy one's fears. On the other hand, however, it seems to me that the objections to these sub-sections are making a mountain out of a mole-hill. Like so many other things in the Constitution, these are some platitudinous general principles that are intended to be a [1739] sort of statement of the national philosophy. A great many of them seem to do no particular good and to do no particular harm, but certainly some observations that Deputy Norton made seem to me to have a definitely dangerous tendency. We are deceiving ourselves if we suppose that the right to assemble, even with the qualifications “peaceably and without arms” is a right that is quite absolute and that the State may not interfere with that right in order to prevent a breach of the peace.

Mr. Norton: Is it not sufficiently covered by the opening statement of the sub-section, that the right is subject to public order and morality?

Mr. MacDermot: That is not the point which Deputy Norton made. He suggested that under no circumstances should the Government have the right to prevent an assembly of citizens.

Mr. Norton: To prevent them on the pretext that they are calculated to lead to a breach of the peace. That is what I objected to.

Mr. MacDermot: I understood him to say that the Government should not have the right to prevent them at all.

Mr. Norton: For these flimsy reasons.

Mr. MacDermot: For any reasons. If I misunderstood the Deputy I am sorry. I just want to make the point that Labour members in England, and for that matter recently the extreme Labour people in Paris, have made a special point of prohibiting meetings of extremist bodies in districts that are violently hostile to the opinions held by these extremist bodies on the ground that they might cause a breach of the peace.

Dr. O'Higgins: We have an Article here which pretends to give certain rights and to guarantee certain rights to the individual, namely, the right of free assembly without arms, subject, and only subject, to public order and morality. The Article starts off to guarantee those rights, but before we have read through a quarter [1740] of a page we find that none of these rights is left to the individual. If the President is so very nervous about the conduct of the ordinary citizens in the State, why go in for this sham and humbug? Why not remove the whole lot, not guarantee anything, and leave the people to meet subject to the notion of what is safe or unsafe of the police officer controlling the district, because in fact that is what you are doing? You are guaranteeing that the people will be allowed to meet without arms provided that no agent of the Government is the least bit uneasy as to the consequences. If there is any uneasiness or any doubt with regard to the consequences of that meeting, then the authority is there to prevent the meeting. Can the President or Deputy MacDermot give us any example nearer than Paris where it is necessary so to restrict the ordinary, commonly understood rights of a people who claim to be free and who detest tyranny? There is no meeting that was ever held, or that ever will be held, where any responsible person is going to give a certificate in advance that there will not be a breach of the peace. Breaches of the peace come, not from those holding the meeting, and not from those organising the meeting, but from other elements. The victims of this clause are going to be the people who organise meetings. It will be sufficient for any “tough” or rowdy to stick up a notice round the parish that if such-and-such a meeting is held the following Sunday, it will be broken up; and then the constitutional rights declared in the earlier part of the Article are to go by the board, and the organisers of that meeting will find that they have no constitutional rights.

Mr. MacDermot: Would Deputy O'Higgins allow me to suggest a possible example to him? Suppose a Communist organisation sought to hold a meeting outside the gates of Maynooth College, would he not consider that that was a thing that should be prevented?

Dr. O'Higgins: That would be prevented as being subject to public order and morality.

[1741] Mr. MacDermot: Does that prevent it?

Dr. O'Higgins: I certainly consider it does, if the question is put to me.

Mr. MacDermot: I wonder.

Dr. O'Higgins: There may be other opinions on the matter. I am merely giving my view that the opening sentence of the section “subject to public order and morality” would override the right. I believe that would be sufficient to prevent the holding of a Communist meeting at the gates of Maynooth. However, it shows the weakness of the defence of this Article when we have to get such an extreme example as that to justify it, no matter from where the defence comes. What hits me in the eye in this Article is that the Article is taking from the people any rights which they consider they have at the present moment and what you are leaving to the people, if this Article goes through in its present form, is the right of citizens to assemble occasionally, without arms, provided nobody considers that there is any element of risk, danger or any possibility of the meeting becoming a nuisance to the public. With the exception of meetings held in the middle of one of the great stretches in the Phoenix Park, can anybody think of any public meeting anywhere that is not to a greater or lesser extent a public nuisance, not only to the participants but to the person going the street or the road? Every public meeting held in a public place, certainly held in a street, on a road or at a cross-roads, can rightly be regarded as a nuisance to the public and while we are guaranteeing the right of the public to assemble peaceably and without arms, if this section goes through as it stands, we are taking from the people any rights whatsoever they may have at the moment to assemble peaceably and without arms.

Mr. MacDermot: Are we taking away these rights?

Dr. O'Higgins: You are giving to others the right to take them away.

Mr. MacDermot: Could we not at the present moment enact laws to prevent [1742] the holding of such meetings as are described in this sub-section?

Mr. McGilligan: If you did you would be subject to a court decision as to whether that was governed by the term “public order or morality.” An independent judiciary will decide that for you. A Minister could not say. “I think this meeting is a nuisance,” prohibit it and have that carried out against the Constitution.

Mr. Norton: If this Constitution is passed in its present form, it could not be questioned in court.

Mr. MacDermot: I see much more force in the suggestion that this has no effect, that it is unnecessary, than I do in the suggestion that it is dangerous.

Mr. McGilligan: It is an invitation. It is a definite danger. Surely it is?

Mr. MacDermot: I cannot see it as such. I cannot take these things as seriously as Deputy Norton or Deputy McGilligan, because I cannot see a democratic country or this House as representing a democratic country passing the sort of law which Deputy Norton and Deputy McGilligan have in mind.

Mr. McGilligan: Perhaps Deputy MacDermot is again going to assert that I am becoming personal with regard to him, but there is another reason which is at the root of all the weakness which Deputy MacDermot displays in debates on these matters, and I am going to state that reason again. The President talked about people who were enmeshed in civilisation. For good or for evil, I believe that Deputy Norton and myself are enmeshed in the civilisation of this country for the rest of our lives. Deputy MacDermot is not. If I were talking about the laws which I thought should be passed for Alberta I should take an aloof attitude on that. I would not have the fears about what was going to happen in Alberta that a citizen of Alberta would have. When you find yourself rooted here, when you know that you are going to live under the laws made here, and that you cannot flee from them, you will get a far bigger respect for the written Constitution [1743] when it is in the making than you would have if you knew that by your own free will you could clear away from the mess when the mess occurred. That is my explanation to myself, sincerely made, of the aloof, detached and calm way in which Deputy MacDermot can view all these things.

Let me just explain one danger. I want to get this phrase cut out. If I do, what is left? That the Constitution gives us the right to assemble. How? Peaceably and without arms. If any law is passed to restrict that right, it will be subject to my or somebody else being able to take it to the courts to get the view of an independent judiciary as to whether it is contrary to public order and morality. There is the situation I would like to have left as the real situation, and Deputy Norton—with some hesitation perhaps about the words “public order and morality”—would agree to that. Instead, we are offered this. We have the right given to us to assemble. Then there is, first of all, the restriction that it must be peaceably and without arms. There is the further restriction that it must be subject to public order and morality, and the court will decide on that. Then we open the door wide open with this phrase. A law may be passed; remember that when a law is passed it is not subject to the limitation that it must be a carrying out of the term “subject to public order and morality.” It is something inside that. It is something narrower than that. A law may be passed to do the variety of things that are here. A law may be passed, say, that the Minister for Justice, from reports made to him by the responsible officer of the Guards for the district, may determine beforehand that a particular meeting is calculated to be a nuisance to the general public, and that law cannot be contested as being unconstitutional. If we had the right to contest the prohibition of that meeting which occurred under that law, on the grounds that it narrowed the constitutional right which was only limited by the term “subject to public order and morality”, then we would be all right. But once we give to the Dáil under the Constitution the right to pass laws [1744] to prevent meetings calculated to cause a breach of the peace, to control meetings calculated to cause a breach of the peace, to prevent meetings calculated to be a danger or nuisance to the general public, and to control meetings calculated to be a danger or a nuisance to the general public, I wonder does anybody believe that much of the right remains?

Deputy MacDermot says there may be occasions upon which it would be the proper thing to have a law to stop a meeting which is going to be a nuisance, and a desperate nuisance. Let us take it that it is something which cannot be caught by any of the other phrases; let us put it at the worst possible limit of nuisance. Weigh the two things in the balance. Should you whittle away the constitutional right to assemble peaceably because you can conceive of an occasion on which a meeting might be a nuisance, and so bad a nuisance that somebody ought to have the right to stop it? Is it well to cater for that type of occasion—which will be seldom, I think—to the extent of whittling away your constitutional right, or is it better to have the nuisance now and again and to keep the right? Surely there can be no doubt as to where the vote will be cast if that is the test?

We are not done with the Article at that point. First there is the principle in regard to the right of assembly. Then there is the restriction that it must be peaceably and without arms. Secondly, it is subject to public order and morality. Thirdly, it is subject to a law passed to prevent a meeting calculated to cause a breach of the peace, or to control a meeting calculated to cause a breach of the peace. It is subject to a law passed to prevent a meeting calculated to be a danger to the public, or to control a meeting calculated to be a danger to the public. It is subject to a law passed giving somebody power to prevent or control a meeting calculated to be a nuisance. It is subject to a law which may be enacted so to regulate or control an open-air meeting as to ensure that it will not interfere unduly with public convenience, and, finally, there is [1745] going to be a right to prohibit or regulate any meeting in the vicinity of either House of the Oireachtas. There you have not merely taken away the skin and the hair, the fur and the feathers of the right; you have broken the back of it. You have completely taken away whatever there was of a right when you have gone through this list of things. Is it right to whittle away your constitutional right for the sake of the odd occasion there might be in which power to pass laws of this kind might be a defence?

Deputy MacDermot put the extreme example of the Communist meeting held outside Maynooth. Deputy O'Higgins gave us his point of view that it would be permissible to prohibit that on the grounds of public order and morality. I do not know whether it would or not. But it would be neither Deputy O'Higgins, nor myself, nor the Government who would decide that. The Government of the day might decide to prohibit such a meeting, and if the Article of the Constitution were left as it is my hope it should be left, it would be for the court to determine whether that meeting was caught by the phrase “public order and morality.”

Mr. MacDermot: Might it not still be the court that would decide in the last resort? The judiciary would determine.

Mr. McGilligan: It may be in the last resort the judiciary, if the Ministry passed a law giving them power to prohibit a meeting because it is a nuisance, and through some flaw in the Act it did not do that correctly. But supposing they had passed an Act which cannot be challenged on any technical grounds, and they give their Minister power to prohibit a meeting which in his opinion is calculated to create a nuisance, you cannot challenge that on the grounds of unconstitutionality. What we are offered here is a constitutional right. Here is your right; here are the limitations. We are going to give the Government power to control or prevent meetings on the various grounds set out, and those laws when passed cannot be challenged as unconstitutional. That is the difficulty.

[1746] Mr. MacDermot: I should just like to say this: Deputy McGilligan plumes himself on being more enmeshed in Irish civilisation than I am. That is his explanation of his point of view on this particular subject. What does it mean? As far as I can make out, merely this—that he takes a more pessimistic view than I do about what the Irish people are likely to assent to.

Mr. McGilligan: No, a more realistic view.

Mr. MacDermot: He may consider himself more realistic, but he is certainly more pessimistic when he sees probabilities of tyranny that I do not see. If it is to be made an opportunity for accusations of alien status every time one quotes illustrations from other countries, it greatly narrows the possibility of useful debate in this House.

The President: I have already gone over the question of liberty, and the abuse of liberty, in connection with the other section, and what I said then applies here. One speaker said that I wanted this simply for the education of the average citizen, and that I was forgetting that it had to be interpreted by the courts. Of course, I am not forgetting that, but I think it is very much better to state, as far as is possible, explicitly what limitations and what powers are being left to the Legislature of the future. Deputy McGilligan would like to tie us up, and to tie up the Government of the day. If it was obvious to an Executive, which had the responsibility of maintaining peace and order, that certain meetings were going to provoke public disorder, they could not stop them. That would be a ridiculous position to allow, or to consider as a possibility for the future.

One of the primary duties of a Government is to see that order is preserved. Some years ago when Deputy McGilligan wanted to do it, he and his colleagues could not think of anything less crude than Article 2A, leaving the Executive absolute power. You cannot put Article 2A into the Constitution any time you want to do so. You must look to the future. If what happened in other countries might happen here the powers the [1747] Executives were given in other countries to maintain order should, if necessary, be at the disposal at least of the Legislature. The power to prevent such meetings will have to be determined by law. Whatever body is given the right of decision in law will have to be satisfied that a breach of the peace is, in fact, likely to occur.

We have to choose between two dangers, the danger of abuse by the Executive or the danger of public order being completely destroyed. The safer thing is that Parliament which is elected by the votes of the people, who have control of those who represent them, should be given the responsibility in the name of the people. One of their duties will be to maintain order, and to do whatever is necessary for the maintenance of order. It ought to be possible for the Legislature of the day to take these measures. There is no use in giving the right, or in indicating that citizens have the right to assemble peaceably and without arms or saying that that right is guaranteed, subject to being properly exercised, when, forsooth, those who have to make up their minds are likely to be tyrannical or likely to abuse their powers. All you can do is to try to secure that those elected to representative positions will not abuse their powers. You have no other way of dealing with it.

It seems to me that these provisions are necessary here. What are they? To prevent meetings which might cause a breach of the peace. Someone stated that instead of stopping meetings the Executive should look after those likely to interfere with meetings. That might be the wrong line for an Executive to take. The forces at its disposal might not be sufficient. It might be better in the general interest that the meetings should not take place, rather than have, for example, a violent collision in the streets of the city, which was beyond the power of the forces of the Executive to control. That could happen. In the first instance, if a meeting that was being held was legitimate they could protect it to the [1748] utmost limit of their power. It is only in a case where it was beyond their power to do that and where the forces at their command were not sufficient, or generally where the public interest demanded that the meeting should not be held, that this law should permit them to take action. As to the control of meetings, it is obvious that the police ought to a certain extent be able to deal with them. If a meeting was held across the tramlines at a busy hour in the middle of the day, it might be the duty of the police officer to insist on the meeting being held in a place nearby, where it would not be a nuisance to the public. Then we have these words, “breach of the peace or to be a danger or nuisance to the general public,” and “the regulation and control of open-air meetings so as to ensure that they will not interfere unduly with public convenience.” Does anybody deny that it is not advisable to deal with these matters? You must remember that in these cases you have responsible people, who can be called to account for their actions, and who will be open to public criticism, while, on the other hand, you have people outside who might be quite irresponsible.

Dr. O'Higgins: What is the point in guaranteeing free assembly?

The President: As long as free assembly is exercised as a right which is not against the public interest, it should be granted.

Dr. O'Higgins: If it is not a nuisance or does not touch on the tramlines.

The President: When it is not a nuisance. I gave an example of the control required. If people at noon held a meeting across the tramlines in O'Connell Street, when another place was available beside it, they could be told to move to the other place and not to disturb the traffic.

Mr. Norton: Why do you want to prevent them?

The President: Because there might be an occasion when the forces at the command of the State might not be sufficient to preserve the peace.

[1749] Mr. Norton: What is the purpose of proscribing a meeting if you cannot prevent it?

The President: It might be necessary to have the power in a Constitution of this sort which cannot be easily amended. While Deputy McGilligan and others would like to be able to go to court and say that the Executive should not do this, I do not want to see the Legislature in that position in the future. Meetings might be held in spite of the Executive.

Mr. McGilligan: Not at all.

The President: That is practically the position you want. There is nothing provided here which any ordinary Executive responsible for the maintenance of order may not require. No Legislature ought to deny itself in advance—and that is what is suggested —the powers asked for here. I should like to indicate that in its present form it is not quite tight enough, and, on the Report Stage, I will bring in a draft slightly amending the present form.

Mr. Norton: In what respect?

The President: To make it quite clear that there will not be some further loopholes for ingenious lawyers to try to prevent the Legislature passing laws that might be necessary.

Mr. Norton: That is the difference between the ingenious lawyers and others.

The President: No.

Mr. Norton: It looks like it.

The President: It is going to see that the Legislature in future, and whatever Executive may be elected and held responsible by that Legislature, will not be put in a position in which they will be powerless to carry out their duties—one of the primary duties being to maintain order. Again, I hold, leaving aside the possibility, which there will always be when powers of any kind are given, the possibility of abuse, that for the safeguarding of democracy these powers should be given. I do not think I have anything further to add except to indicate [1750] that this particular text here is not the text I will have on the Report Stage.

Mr. McGilligan: We are promised then, in answer to our arguments, that not merely will the handcuffs be kept on, but that leg chains are to be added.

The President: I am going to see that this will be in order.

Mr. McGilligan: There is no nonsense about asserting the right to peaceable meeting. The President has given a variety of examples, every one of which he either used in connection with that, or there was in the text of his remarks the word “order.” He mentioned disorder, and he mentioned about meetings leading to a breach of the peace. Are these examples covered by the words, “public order and morality”?

The President: If that is so, then the Deputy's only complaint is that we are doing something which is unnecessary.

Mr. McGilligan: There is only one point of difference between us. If you leave the Article to read, “subject to public order or morality,” every law passed can be tested in the courts. If you put in this phrase, it will be by the mentality of some Minister.

The President: That depends on the legislation that will be passed.

Mr. McGilligan: You give power to the Legislature to put it into the hands of a Minister. Let us take one example given. The President introduced the example of a meeting to be held athwart the tram lines on a busy day. It is reasonable, he says, to get that meeting prohibited, particularly if there is a vacant space beside it.

The President: Not prohibited, but moved.

Mr. McGilligan: Prohibited, if there is a vacant space beside it. That is reasonable, it is said. Whose reasoning is to operate in this?

The President: Common sense in that case.

[1751] Mr. McGilligan: Whose common sense? If it is to be guarded by the phrase “public order”, a law which would prevent a meeting being held at a busy time of the day athwart the tram lines would be held by the courts as being ruled by the phrase “public order”. The President does not want that. Of course, the hopeless part of this—it is against my own argument— is that that law would only be tested after the event, because the meeting would be over. But you can stop a recurrence. If you leave the constitutional right and simply say it is subject to “public order and morality”, you will have an independent point of view expressed as to whether or not the prohibition of a certain meeting is ruled by that phrase “public order and morality”. The President does not want the courts to be butting into this matter, or to have any interference from the courts.

The President: The Deputy consented, in the old Constitution, to keeping out the courts.

Mr. McGilligan: Possibly I did. I do not say that everything in the old Constitution was right, but it was open to amendment in the easiest possible way, and this is not going to be. As long as there was a constitutional right guarded by the phrase “order and morality”, anything in the way of a law in a constitutional amendment that came then underneath the Constitution could be tested by the constitutional phrase, and in the way in which the Constitution had to be tested—by an independent judiciary. I put that as the test. The division between us is that, on the one hand, you have the phrase that, by decided cases, has been brought to the point that would even meet what Deputy Norton urged as an objection to this Article, because there have been cases in which it was decided that the law of the day was allowed to prohibit meetings because an unruly body was likely to cause a breach of the peace—not people holding the meeting. I do not know whether that case will be followed, but it is there. The great thing about having the phrase “public order and morality”, is that you do not have an Executive interested [1752] in getting a meeting stopped. The sole judges of whether there is likely to be a breach of the peace or a nuisance to the public will be an outside body. Undoubtedly, at the very end, the test is, what is the mentality you want to operate upon the exercise of this right? Is it the judiciary or the Government of the day? The President's last phrase was that he did not think that Government should deny itself the power.

The President: That we should deny a Government the power.

Mr. McGilligan: You do not deny a Government the power by taking these words out. You only deny them if they are not caught by the phrase “public order.” I am leaving out “public morality,” because that deals with an entirely different section of cases. “Public order” is the one concerned in this. Do we think it right to deny to a Government powers with regard to the prohibition of meetings, and therefore to take away this constitutional right of peaceable assembly—deny powers that will not be caught by the phrase “subject to public order and morality”? It is a good test. There are a lot of decisions upon it. We will have an independent Irish point of view operating on the words. Finally, will the President tell me if there is a single Constitution in the world which has a phrase in it like this giving power to enact laws under the Constitution as to what is calculated to be a nuisance to the general public? I doubt if there is such a phrase anywhere.

Mr. MacDermot: Surely Deputy McGilligan has rather given the case away, so far as it is serious, when he says that at the present time we have power to do these things by way of constitutional amendment, though not by ordinary law. I understood him to make the point that we can—and we did, in fact, by Article 2A —suspend all sorts of liberty so long as we do it by way of constitutional amendment.

Mr. McGilligan: Yes, by constitutional amendment, but this is rigid.

[1753] Mr. MacDermot: If you can do it quite easily now by way of constitutional amendment, we are no worse off if it becomes quite easy to do it by way of law. The Deputy has considerable courage to talk as he does, having brought in such a constitutional amendment. Nevertheless, abnormal situations may recur. Supposing this Constitution had been in force, and supposing this clause that Deputy McGilligan is objecting to had been cut out, what in fact would he have done at the time of Article 2A?

Mr. McGilligan: “Public order” would rule that matter.

Mr. MacDermot: I do not think that that would fit in under public order. The whole contents of Article 2A would not be considered as covered simply by “public order”.

Dr. O'Higgins: That is elsewhere in this Constitution.

Mr. McGilligan: Article 2A is elsewhere in this Constitution.

Mr. MacDermot: Article 2A is not in this Constitution.

An Ceann Comhairle: Even in Committee, discussion must proceed in an orderly fashion and not degenerate into question and answer across the House.

Mr. Norton: I cannot understand, from the reasons given by the President for the maintenance of restrictions in the various Articles in the Constitution, why he troubled to write such a long Constitution at all. The philosophy of the President on this Article, as we saw on the question of the special courts yesterday evening, and on every other question which has been raised, is that you must trust the Executive. The people must make sure that they do not elect anybody who may do any harm to them. If that is the mentality of the President, then I say this Constitution could have been written on a postcard. Then there need be only one single Article and only one declaration, and that would be that: “The people render all obedience and loyalty to the Executive Council, and the Executive Council [1754] will look after their various needs and regulate and provide for public conduct.” That is essentially the view point of the President. He told us yesterday that he disliked intensely a particular piece of legislation imposed over five years ago. He did not know how other people would use it, but he had a deep, abiding faith in himself and he consequently knew that he would not abuse the powers given him or that he would not cut himself with the tools.

I can quite understand the President's abiding faith in himself. I can understand that he feels he is a just man and can always be trusted to do the right and correct thing. But I object to the President's mentality in that respect. I am not prepared to give to anyone, human nature being the frail commodity it is, the power to exercise rights on behalf of every citizen in the community. It is because I am not prepared to give the President the powers he claims, even though he claims that he will be infallible in the use of these powers, that I am opposed to this particular tag in Article 40. That gives the Executive Council power to legislate down to very small matters. It gives it power to legislate down to such matters as the holding of public meetings.

If the Executive Council is given power to legislate down to the low level suggested in this particular section, we may find that a future Minister for Justice will have power to issue a proclamation preventing meetings which, in his opinion, are calculated to cause a breach of the peace or calculated to be a danger or to cause a nuisance. The Minister for Justice representing, let us say, a provincial constituency may think it would be calculated to be a nuisance to the general public, and to his friends amongst the general public if a very large public meeting were held in his constituency. He may think it would be a very good ruse to say that a particular meeting being held in that constituency—“my supporters being of the fiery character they are”—may cause a breach of the peace and should be prevented. I want to prevent any Minister having the [1755] power to regulate small matters of that kind in that particular way. And I want to try to ensure, once you declare the rights of the citizens to assemble peaceably and without arms, that they will be entitled to exercise that right, and that it will not be within the power of the Minister to put a microscope on every particular meeting and to say, in respect of that particular meeting, that laws may be enacted to prevent or control it because it is calculated to cause a breach of the peace or to be a danger or nuisance to the general public.

I think the general power conferred by the State in the opening sentence of this section ought to be good enough, namely, that the State guarantees the liberty to assemble peaceably and without arms subject to public order and morality. If the Minister takes it upon himself to proscribe a meeting which he thinks ought not to be held, having regard to the desirability of maintaining public order, then that meeting will not be held. But the ordinary citizen in that circumstance can go to the court and say: “This meeting was in no way calculated to cause a breach of the peace or to be a danger or a nuisance to the general public, and it was just an exercise of spite on the part of the Minister that induced him to proscribe this particular meeting.” In that case the courts would have power to say to the citizen: “Yes, you had a perfect right to hold that meeting and the issue of a proclamation proscribing that meeting under that type of legislation was an invasion of your rights.” In such a case the Executive Council could not repeat the trick at the next election. I think that is a reasonable proposition from the standpoint of the Government and from the standpoint of the citizen.

It is up to us to safeguard the citizen. The Executive Council can pretty well look after itself. It is not right that we should enact a Constitution here which enables a future Minister for Justice to proscribe meetings by advertence to the factors mentioned in this section, none of which is of any great importance, having regard to the control [1756] and safeguard which the State has in the opening sentences of this section. Apparently even the President thinks there is even now too much liberty in this section, and on the next stage he will have an amendment apparently further restricting such right as is conferred here upon the citizen. I think if this section is enacted the citizen in the future may well petition Parliament asking that those co-called rights which are supposed to be conveyed to him should be removed because he will have much less liberty if this is passed than he has at the moment so far as public meetings are concerned.

The President: My view is that he will have very much more liberty, and that if the legislature is to be completely denied the power to make laws to enable it to deal with abuses, then there will be little freedom for anybody. It is in defence of freedom this is done—not closing the doors and preventing the Legislature passing laws to meet situations which may possibly arise. There has been talk about Constitutions in other countries. I have some of them here. This is the Constitution of the Polish Republic. Article 108 says: “Citizens have the right to meet by association as well as common exercise of opinion; the application of these rights is regulated by law.” Under a provision of that sort the door is open to do anything you want. In the Belgian Constitution, Article 19, the Belgians have a “right without previous authorisation to assemble peaceably and without arms and conform themselves to the laws which regulate the exercise of that right.” In other words, the exercise of the right is to be determined by law. “This provision does not apply to assemblies in the open air which remain entirely under police laws.”

Mr. McGilligan: “Does not apply to assemblies in the open air”?

The President: It does not.

Mr. Norton: There are wider powers in the Constitution here.

The President: Not at all. There is enacted here quite clearly that there is the right normally and that the [1757] exercise of that right ought be normally free. But we are living in a community or society. Your society has arranged or is to arrange to govern itself and see that there is order, so that the individual citizen's freedom may be maintained and the good of society as a whole may be preserved. We cannot close our eyes to what is the tradition in other countries and what it is necessary we should make provision for here. We would be quite foolish to close the door in our Constitution. It was all right when you could amend your Constitution by a piece of legislation, but we will not be in that position in a very short time. Consequently, we want to see that the door is not closed against legislation that may be necessary. Deputy McGilligan has quite clearly indicated that the only difference between us is the question as to whether the right should be determined by, say, the Executive of the day; whether it should be arranged that it should be determined by the Executive of the day or by the courts. That is, no doubt, a matter of very grave importance. The question is whether, in these circumstances, the courts are the people best fitted to determine. That is a matter on which there can be differences of opinion. There is nothing to prevent the law from arranging it in such wise, if they so wanted it, that the courts would have to determine.

Mr. McGilligan: Or to prevent them, having it the other way?

The President: That is quite true. I do not want to see the courts prohibited in advance or to see the Legislature prohibited in advance from arranging by law that, if the circumstances demand it, the Executive that is immediately responsible for law and order and that will have most information as to the situation, should have the power to determine. The question is, are we going to close the door and create a new situation? I think it would be unwise to do it. It has been suggested that these clauses are sufficiently wide in themselves, but my present feeling is that it is very much better that it should be explicitly set [1758] down in the Constitution and not hidden away in some law report. I think it should be explicitly set down in the Constitution so that every citizen may know the rights given to him.

I think it is right that the State, the Legislature, the Executive, should have the power in the public interest to prevent, for instance, a meeting which it was satisfied was going to provoke a breach of the peace, when the Government might not have forces sufficient at their disposal to control that meeting, and I think it should be in a position to regulate meetings also. It is quite understandable that there should be a difference of view.

Mr. McGilligan: The position will be that the Executive will be given power to determine what is in the public interest?

The President: It may, by law.

Mr. McGilligan: As regards those quotations from other Constitutions, I do not speak with any pretence to an understanding of the situation, but I understand that the Belgian police laws are not subject to the Constitution, and I do not like Poland as an example when one considers the limited freedom in reference to public meetings in Poland for about seven years.

The President: This was an earlier Constitution.

Mr. Norton: And it facilitated the establishment of a dictatorship.

Mr. McGilligan: Under it what happened with regard to public meetings? The right of public meeting was very nearly suppressed, very nearly eradicated. These limitation phrases here are the phrases of the police department, and nothing else. So far as Poland is concerned, there have been changes in the Constitution, but whatever is the provision in the Constitution which they are operating, it enables them almost entirely to suppress public meetings.

The President: That is a later Constitution.

Question put: “That the words proposed to be deleted, stand.”

[1759] [1760] The Committee divided: Tá, 45; Níl, 34.

Allen, Denis.

Bartley, Gerald.

Blaney, Neal.

Boland, Gerald.

Boland, Patrick.

Brady, Seán.

Briscoe, Robert.

Browne, William Frazer.

Carty, Frank.

Concannon, Helena.

Cooney, Eamonn.

Corkery, Daniel.

Crowley, Timothy.

Derrig, Thomas.

De Valera, Eamon.

Flynn, Stephen.

Fogarty, Andrew.

Goulding, John.

Harris, Thomas.

Kehoe, Patrick.

Kelly, James Patrick.

Kelly, Thomas.

Kilroy, Michael.

Kissane, Eamonn.

Little, Patrick John.

Lynch, James B.

MacDermot, Frank.

MacEntee, Seán.

Maguire, Ben.

Moore, Séamus.

Neilan, Martin.

O Briain, Donnchadh.

O'Grady, Seán.

O'Reilly, Matthew.

Pearse, Margaret Mary.

Rice, Edward.

Ruttledge, Patrick Joseph.

Ryan, James.

Ryan, Martin.

Ryan, Robert.

Sheridan, Michael.

Smith, Patrick.

Victory, James.

Walsh, Richard.

Ward, Francis C.

Níl

Anthony, Richard.

Beckett, James Walter.

Bennett, George Cecil.

Cosgrave, William T.

Davin, William.

Desmond, William.

Dockrell, Henry Morgan.

Doyle, Peadar S.

Everett, James.

Fitzgerald, Desmond.

Fitzgerald-Kenney, James.

Hogan, Patrick (Clare).

Holohan, Richard.

Keating, John.

Keyes, Michael.

Lynch, Finian.

McFadden, Michael Og.

McGilligan, Patrick.

McGovern, Patrick.

McMenamin, Daniel.

Minch, Sydney B.

Morrisroe, James.

Morrissey, Daniel.

Murphy, James Edward.

Nally, Martin.

Norton, William.

O'Higgins, Thomas Francis.

O'Leary, Daniel.

O'Neill, Eamonn.

O'Sullivan, John Marcus.

Pattison, James P.

Reidy, James.

Rice, Vincent.

Roddy, Martin.

Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Doyle and Bennett.

Question declared carried.

Mr. McGilligan: I move amendment No. 124:—

In Section 6, sub-section 1º, to delete paragraph iii.

I have much the same point of view on this as on the previous amendment, and I think the arguments are very much in line with those used on the previous amendment with regard to the right of citizens to express their convictions. I object here definitely to the limitation in respect of the right of the citizen to form associations or unions. It is subject to public order and morality by the preamble and yet it is thought necessary to put in here that “laws may be enacted for the regulation and control in the public interest of the foregoing rights.” Here, at any rate, there is not the same detailed objection there was to the last, because there are not so many grounds of exceptions stated in detail, but there is still the big point of difference that there is constitutional right to form associations and unions, and if that is subject to public order and morality, the courts will decide whether any law passed to regulate and control this right is constitutional or not. When, however, the same Constitution, inside the phrase “public order and morality” and, therefore, as a further limitation on it, enacts that laws may be passed for the regulation and control in the public interest of the exercise of that [1761] right, it seems to me to leave it open to this: that the Government of the day may persuade a legislative body in which it has a majority to pass laws which will enable the determination of the public interest to be made by the Executive. That, I think, is wrong. If that public interest were to be a matter to be adjudicated on by an independent judiciary outside, and if the question of the public interest were to be ruled as the words “public order and morality” would be ruled, it is on a different footing; but I conceive that when you have as a limitation “public order and morality,” and then, inside it, as a constitutional provision, leave taken to have laws passed to regulate the exercise of the foregoing right in the public interest, it means that the public interest will be judged on each occasion by the standard of whatever is the view of the Government that gets the laws passed. I think that is a complete and entire abrogation of the right.

The President: The point of difference here is the same as before, and I do not think we will get anywhere by arguing. It is necessary in the public interest to have that right. For example, we might have an arrangement for the restriction of trade which was clearly not in the public interest, and, if you did not have some provision like this, the right to form an association of that sort would be asserted, although it was clearly not in the public interest. Again, this is simply leaving the door open so that Legislatures of the future, in whatever conditions may arise, may be able to step in, and, in the public interest and for the common good, say: “Very well; this particular exercise of this right here would be detrimental to the community as a whole.”

Mr. Norton: What did the President say about a restriction of trade?

The President: In the public interest.

Mr. McGilligan: That, in the public interest, the right to form associations and unions should be restricted, and [1762] the “public interest” will be determined by the Government.

The President: By the Legislature.

Mr. McGilligan: Who may give power to the Government, and not by the courts.

Mr. Norton: The President has used a phrase that throws very considerable light on the mentality behind this. He says that, for instance, it might be possible, if that right were given in an untrammelled way, to form associations and unions to restrict trade. If the President looks at the provisions of the Trade Union Acts, he will find that one of the definite rights given to trade unions is to restrict trade. As a matter of fact, the ordinary structure of a trade union is based on the fact that it is given particular rights because of the normally non-legal character of its activities. The President now says that it is, apparently, necessary to introduce laws so as to prevent any restriction of trade. Let us examine that for a moment. Trade unions in their efforts to secure improved wages or improved conditions for their members may find it necessary to engage in a dispute. They may find it necessary to ask a semi-public undertaking like the Sugar Company, not too famous for paying good wages, or the Electricity Supply Board for improved wages or conditions. That may be held to be a restriction of trade, having regard to the significant phrase used by the President. If what the President said is to be interpreted literally, it would be possible to introduce a law to prevent a trade union taking such action as would be a restriction of trade in that instance. The President's viewpoint is extremely interesting in the light of a recent development. I was informed recently that, in a trade dispute with the E.S.B. in the city, a police officer called on a secretary of a trade union, quoted him the terms of an Act of about 60 years ago, and said that, under the provisions of that Act it was an offence for a union or for anybody to act in restriction of the provision of gas, light or water.

“Take notice,” said the police [1763] officer to the trade union official, “if there is another strike in the E.S.B., we may find it necessary to prosecute you as the responsible official of the union for having anything to do with the strike.” That was a most amazing attitude for a police officer to adopt. I do not know whether the police officer acted on his own responsibility or whether he was instructed to do so by the Department of Justice or by the Executive Council, but the incident throws an interesting light on the viewpoint of his superior officers—that a police officer should intimate to a trade union that if it exercises its normal and natural right to withdraw the labour of its members from an industrial undertaking, the union officials and the members who withdraw their labour may be prosecuted by a Free State Government under a British statute.

An Ceann Comhairle: If the Deputy would raise that question on some other occasion, with the Minister responsible, it would be more appropriate. We are not now dealing with a British statute. Obviously, the matter to which the Deputy refers concerns the administration of a Department, the Department of Justice.

Mr. Norton: I submit, with all respect, that the President's statement that it is undesirable to restrict trade and that we may have to legislate for a situation in which it is likely trade will be restricted must be taken with the police officer's recent dislike of the restriction of trade in order to get a picture of the mentality of the Executive Council responsible for the introduction of this Draft Constitution. However, I have said sufficient regarding the police officer's activities to draw the attention of the House, and particularly the attention of those members of the House who are interested in the preservation of the rights which the trade union movement has under the law, to the danger.

If this Draft Constitution is passed in its present form, it will be possible for the Legislature in the future to enact laws for the regulation of trade [1764] in the public interest and the exercise of the right of citizens to form associations and unions. The statement now made by the President causes me even more uneasiness than I felt when I read this particular section in the Draft Constitution. It is quite possible for the President, or for any future President, to come to the House with proposals for legislation calculated seriously to invade the rights which the trade unions have under the present law. If the police officer was acting on instructions, apparently there is a mentality somewhere in Governmental circles which would like to restrict the activities of trade unions. I am, therefore, opposed to the limitation contained in this section. It has within it the possibility that the Legislature may be asked to enact legislation to restrict and fetter the rights of workers under existing Trade Union Acts.

I suppose the President will say, as he said on other sections, that you must trust the Executive Council of the day. I wonder where the trade union movement would be if it had always been content to trust the Government of the day. It was not by trusting this President or that President, this head of a Government or that head of a Government, that it got its rights. It has only been able to obtain its rights by long, bitter and intensified struggle. To advise trade unions to indulge in the pleasant contemplation that their future rights will be safeguarded by having faith in a President or Taoiseach is not a thing that will commend itself to these unions. The President would be well advised not to insist on the insertion of this sentence qualifying the right as set out earlier. This sentence has caused considerable misgiving to trade unions, and the unfortunate phrase used by the President in resisting this amendment is well calculated to intensify their fears.

Mr. T. Kelly: The people to whom the Deputy refers are public servants. They would not come under the term “trade” in the ordinary sense.

Mr. Norton: Does Deputy Kelly suggest that a public undertaking, like the Electricity Supply Board or the [1765] Sugar Company, is entitled to pay workers low rates of wages or to require them to work long hours?

An Ceann Comhairle: That matter is not relevant.

Mr. Norton: Deputy Kelly is, apparently——

An Ceann Comhairle: The question is irrelevant. The fact that a Deputy interrupts does not make a matter relevant.

Mr. Norton: If it is sought by any member of the House to justify the right to impose legislative restrictions of the kind foreshadowed in this section because he believes it is right and desirable to have those restrictions imposed in the case of what are described as “public undertakings,” I feel that that member is acting under a complete misunderstanding of the precise position of employees in a public undertaking.

The Trade Union Acts guarantee the right of every worker to withdraw his labour in the course of an industrial dispute. It would amaze me if it were contended by any Deputy that there was any restriction on the right of workers in semi-public undertakings, like the E.S.B. or the Sugar Company, to do so. Surely these workers are as much entitled to withdraw their labour as a protest against exploitation as are the workers in any other undertaking.

Mr. T. Kelly: My experience in this city leads me to believe that workers take care to protect the public services and not allow them to be interfered with.

Mr. Davin: They have to protect themselves.

Mr. Minch: I listened with attention to Deputy Norton's account of his worries in connection with this provision. You could also apply that restriction to trade. The right could be exercised under this Constitution to bring about such a state of affairs that rationalisation or artificial restriction in surplus commodities or goods might be interfered with. What Deputy [1766] Norton asserts in regard to trade unions, if it became legitimate, could also be applied to industries and trade, because very often it is necessary to have curtailment in trade or in a particular industry if you want to save that industry and do not want the whole bottom to fall out of it.

Mr. Norton: Are we not having it with the calves at present?

Mr. McGilligan: And with pigs and bacon.

Mr. Minch: If that is the position on the one hand, as far as labour is concerned, does it not also apply at the other end as far as business and industry are concerned?

The President: Deputy Norton has an amendment on the Order Paper— amendment No. 126—in which he proposes that “in the interest of the community restrictions may be imposed by law on the formation and conduct of profit-making enterprises or associations”. The way we propose to deal with that amendment is to say that it is covered by this clause. There may be dangers in certain directions, and is the Legislature to be prevented from making laws in the interests of the community? In the present social conditions are we to be told that the Legislature must not have that power: that every form of organisation and association, no matter whether it is in the public interest or not, must be allowed to operate?

Mr. McGilligan: Is the President forgetting about the Preamble, about “public order and morality”?

The President: No. There is a question of wide public interest, and the Legislature may have to regulate, in the general public interest, the formation of associations of that kind. I think it would be unwise, in the present condition of things, to say that the Legislature must not be able to regulate the formation of associations when those associations conflict with the general public interest. I think that we would be simply blinding ourselves to obvious facts if we did that. Deputy Norton calls out for it in one case, but there may be other [1767] cases where the regulation of the formation of associations may have to be looked after in the public interest. Consequently, this is giving a power to the Legislature, a power which I believe is necessary in the present condition of things. It would be ridiculous for us to say that we should shackle ourselves just at the time when the greatest freedom of action by the Legislature is necessary on behalf of the public. We have very serious problems of a social character to deal with. You cannot foresee completely the most effective way of dealing with them, but surely you should, in the interest of the community, allow the Legislature to be free to deal with them and not have it tied up with Constitutional restrictions. The purpose of the Article is to make the way open so that the Legislature can do that in the way best calculated to serve the public interest.

Mr. Morrissey: I think the President has unwittingly let his real mind be known to the House on this matter. I think the mentality in the Government regarding this particular part of the Article, referred to by Deputy Norton, may be traced back to the transport strike here in Dublin. We know what the Government's mind was on that strike. I think that the Government, through one of its Ministers, let the trade union movement in this country know what its mind was. I do not think I am going too far in saying that, subsequent to that strike, the Government delivered what was almost an ultimatum to the trade unions as to setting their house in order, and that it was intimated to the trade unions that if they themselves did not take certain action, then the Government would be forced to do so. In my opinion, this is the most serious part of this Article. From a practical point of view, it is even more serious than the first part which was under discussion yesterday and for the greater part of to-day.

The President talks about the Government or the Legislature taking action in the public interest. As we [1768] know in this country, and particularly so to-day, the Government is the Legislature when it comes to taking action. It is the Government that will decide what is, and what is not, in the public interest. It can decide to ban an association, trade union or group if it decides that it is in the public interest to do so, although it may be far from the public interest to take the action that the Government determines to take. I think it ought to be quite clear now, if it has not been long before this, that all the talk we have heard both inside and outside of this House from the occupants of the Government Front Bench as to their sympathy with trade unions, with working men, and their desire to see associations formed for the protection of the workers, was all nonsense.

Mr. Cooney: It never went out on a strike-breaking campaign like the Deputy's Party did when in office.

Mr. Morrissey: The Deputy's memory is very short.

Mr. Cooney: Is that so?

Mr. Morrissey: Does the Deputy remember the military lorries on the streets of Dublin?

Mr. Cooney: Does the Deputy remember the Marino strike?

Mr. Morrissey: The Deputy ought to remember what happened in his own constituency and ought not to rush in here. He is on very thin ice now.

Mr. Cooney: Deputy Cosgrave rushed in when President and brought you to the courts afterwards.

Mr. Morrissey: I suggest the Deputy's memory is at fault.

Mr. Cooney: Read the files of the papers.

Mr. Morrissey: It would be more to the point if the Deputy would read the Constitution. If he would do that and listen to the President he would learn that there is more danger to trade unions in this country in this Article than there is in any file in any Government office.

[1769] Mr. T. Kelly: Indeed there is not.

Mr. Morrissey: Deputy Tom Kelly's absolute blind faith in the President and the Government is something to be admired.

Mr. V. Rice: And impersonation.

Mr. Morrissey: I certainly admire the loyalty of the Deputy. He cannot conceive of the President doing anything wrong.

Mr. T. Kelly: He is not doing anything wrong yet, at any rate.

Mr. McGilligan: Not as far as the Deputy understands.

Mr. Morrissey: And I am quite sure that if Deputy Kelly thought the President was doing anything wrong he would address a few words to the President on the matter and try to put him back on the right path. That, however, is what is wrong. The President is never wrong, in his own opinion, and he is probably never wrong in Deputy Kelly's opinion also. However, I want Deputy Cooney, who has, I know, a keen interest in the trade unions and in trade union conditions, to address himself to this particular Article of the Constitution, to read it carefully, to listen——

Mr. Cooney: And interpret it correctly.

Mr. McGilligan: Let the Deputy give us his interpretation now and again. Let us hear Deputy Cooney on it.

Mr. Cooney: That essential services should be preserved.

Mr. Morrissey: Deputy Cooney would not always agree to these limitations.

Mr. Cooney: Nor Deputy Morrissey either.

An Leas-Cheann Comhairle: Deputy Morrissey is entitled to make his speech without interruption, just as other Deputies are entitled to do so.

Mr. Norton: Well, Sir, this is the nearest that Deputy Cooney came to speaking, and perhaps he should not be discouraged.

Mr. Morrissey: Well, I was hoping to [1770] elicit and encourage the support of old trade unionists like Deputy Cooney. Many years ago I remember hearing him thumping the table and holding forth very eloquently against the oppression the trade unions were suffering under. At the Trades Union Congress there was no more eloquent member of that Congress than Deputy Cooney.

Mr. Davin: The old Socialist Party.

Mr. Morrissey: Well, I do not know if that Party is still in existence. However, I want to make the point, and I want to repeat it, that I believe —and the President blurted it out——

The President: I did not blurt anything.

Mr. Morrissey: ——that this is aimed against the right of the citizens to form associations.

The President: That is what has been suggested by Deputies.

Mr. McGilligan: And interpreted by a phrase.

Mr. Morrissey: Interpreted by the President, mind you. Just imagine this thing being left in the Constitution to be interpreted by the President in the next Parliament, say.

The President: That is not what I said.

Mr. Morrissey: We know what the President told us last night. He wants those powers for himself, just as he wants certain other powers in the Constitution for himself.

The President: I may be in the grave in a few days, so far as I know.

Mr. Morrissey: Well, I hope that it will be only a political grave, but he is not going to remain here. He is either going up a step or he is going down, but he is not going to remain as Leader of this House.

Mr. Cooney: Not if you can help it.

Mr. Morrissey: Oh, it is the people who will do it, not we; and they are waiting the chance to do it. The only thing is that the people are absolutely [1771] impatient at the amount of time that is being taken to deal with this Constitution, Sir, and, therefore, as I do not desire to take up any further time in standing between the people and their verdict, I shall sit down.

Mr. Kehoe: That is the best thing the Deputy said yet.

The President: Of course, it must be obvious to people who are talking about this thing being directed against trade unions and the right of the citizens to form associations and unions that, if you want to have a power such as Deputy Norton is seeking, you must have the powers to legislate in these matters. It is ridiculous to say that the powers are being directed against one group rather than against another group. These are general powers, and we do not know in what direction it may be necessary to use them.

Mr. McGilligan: The big point is still that it is a general power to be adjudicated upon by an Executive. It is a power which can be operated by an Executive which wants to do something and which can get laws passed inside the term “public order and morality”. In that connection, I am assuming all the time that the word “public” carries forward from “order” to “morality” in the Preamble to this. I notice that in the Irish text the adjective is attached to the other words, but I think that is because the adjective always comes last. The only way to reconcile the two is on the ground that the word “public” applies both to the word “morality” and the word “order”. That being so, what does “morality” cover? Would it cover such things as the abuse of the power of forming associations? Would it come anywhere near the phrase “in the public interest”? I think it would come very close. Is it intended to be something near that? If it is, and if it does approach to something near, then the only point of distinction and the only reason for bringing this in is that, when you get a judgment on “order and morality,” it will not be an Executive operating from a Legislature that will be the judges; it will be somebody outside. [1772] But when you get this other phrase, it means that, even though it is contrary to public order and morality, laws may be passed with regard to the restriction of the exercise of the right.

The whole purpose of this parenthesis is to get away from the courts— not to have people sitting outside in an impartial spirit interpreting whether some law is governed by the phrase “public order or morality,” but to have it here so that the Executive of a Party, working through a majority in the House, can get laws passed which will enable some member of the Executive Council to declare that, according to his view of what is the public interest, various things may be done. The only change really that we get in these three lines from the Preamble phrase—public order and morality—is that change of whether to have some outside body decide or to have a Minister decide what is in the public interest. Do you want to have the courts decide on whether the right to form associations is being abused, or do you want a Minister to be given power to say, “My view is that that particular kind of thing should be stopped”? Once that law is passed, you cannot go to the courts on the ground that that law is unconstitutional because once it goes into the Constitution, then, even though it is not contrary to public order and morality the Minister gets powers to do something in the public interest.

Mr. Cooney: Does the Deputy fear a return of Fine Gael to power?

Mr. Morrissey: No, but you do.

Mr. MacDermot: I should certainly vote against any law giving a Minister power to determine what was a proper association or not. I do not believe that such a law would have the faintest chance of being passed.

Mr. McGilligan: But if the law be passed, these words being there, the courts are excluded. I am all the time arguing with Deputies and asking them do they think it right that in the matter of these fundamental liberties— the part we are dealing with is headed “Fundamental Rights”—do they desire [1773] that these fundamental rights should eventually, in the last resort, be subject to the test of the courts, or do they want it to be left to what some Minister thinks is in the public interest? I only allude to it as a possibility, because it is a possibility.

Mr. MacDermot: It is not so much between the courts and the Minister as between the courts and the Legislature, and where it is a matter between the courts and the Legislature I would be in favour of the latter each time.

Mr. McGilligan: Well, then, the Deputy will go for the courts, because this is certainly a diminution of the rights of the Legislature.

Mr. MacDermot: No. If you have a written Constitution at all, you must have the courts to interpret it. I think it is not necessary to have a written Constitution, but if you are going to have one I should like to put as little in it as possible. I do not believe at all in trying to tie future legislators as much as you can, and as much as Deputy McGilligan, apparently, wants to tie them.

Mr. McGilligan: Is it tying them to say that these fundamental rights are subject to public order and morality? Is it a very big restriction to put on them to say that that is the governing phrase and that we will get an independent body to interpret? Evidently the Deputy would like to oust the courts from the guardianship of the fundamental rights in the Constitution.

Mr. MacDermot: No.

Mr. Norton: I understood Deputy MacDermot to be one of the people who was enamoured of this phrase of checks and balances. At least, he used to be when he was on the other benches. He may now have shed his faith in that as he shed his membership of the Party.

Mr. MacDermot: As a matter of fact, I never used to use that phrase.

Mr. Norton: You certainly murdered it for the past week.

Mr. MacDermot: For the past week it was very necessary to remind people [1774] of it, but I do not happen to be one of the people who used to talk about it. I am not saying that it is a bad phrase.

Mr. Norton: Now everybody has a choice in knowing where the Deputy stands. As has been pointed out to the President when the previous sections of this Article were being discussed, the overriding condition, in the guaranteeing of certain liberties to citizens, is that they must exercise these liberties all the time subject to public order and morality. It seems to me that in that overriding condition set out in the opening sentence of the section, the Executive Council has all the powers that might reasonably be required. The President, however, is not satisfied with that. He wants in addition to give the Executive Council powers within the confines of the Party meeting room——

The President: No.

Mr. MacDermot: Is that what amendment No. 126 does?

Mr. Norton: We shall discuss amendment No. 126 when we come to it.

Mr. MacDermot: It is extremely relevant.

Mr. Norton: We can discuss the relevancy of it when we come to it. The President wants in this sub-section to enable powers to be conferred on the Executive Council to enact legislation providing for the regulation and control in the public interest of the right to form associations and trade unions. Of course, what that means is that the Executive Council of the day, having an obedient majority behind it, will be able to secure an endorsement of its proposals from the Party machine and to steamroll them through this Assembly, even though a fraction of the members probably will not know what the legislation is about, and will pay as little attention to it as many of them are paying to the provisions of this Constitution. That is the situation with which we may be confronted if this Article is passed in its present form. I, therefore, object to the inclusion of this limiting sentence because it [1775] gives power to an Executive Council with a bare majority behind it in this Assembly, to pass legislation which may be a serious invasion of long-recognised rights held by trade unions. Some of the provisions of that legislation may enable the Minister to come in to exercise further functions, without his action in that respect being restrainable by the courts.

In the United States it used to be possible, when an industrial dispute took place, for employers' organisations to get the court to sequestrate union funds. In that way the employers were able, because of the peculiar legislation that existed, to render the use of organised power by the trades unions entirely ineffective. It may be possible under the legislation contemplated here to give power to the Minister, in any circumstances in which he may think fit, to apply to the court to sequestrate union funds which are being used to finance an industrial dispute. It may be possible in that legislation to give the Minister power to proscribe a strike in any particular industry, in any particular service, or in any group of particular services. Of course, many of the utterances of members of the Government give grounds for considerable fears in that respect. The Department of Industry and Commerce or the Minister did not come out of the tramway strike in this city with any great credit from the trade unions' standpoint. We had in the course of the strike what was tantamount to an ultimatum by the Minister, telling the union that he would not exercise his normal functions as mediator unless the workers on strike went back to work.

An Leas-Cheann Comhairle: That is really outside the scope of the debate.

Mr. Norton: That is one of the dangers of this section, and it is the same Executive Council that is asking us to pass this Draft Constitution.

An Leas-Cheann Comhairle: That is a question of administrative action.

Mr. McGilligan: The Minister for Industry and Commerce did say at a public lecture that there were too [1776] many trade unions in this country in his opinion. If this section is allowed to stand in its present form, what is to prevent the Minister passing a law to restrict the number of trade unions in the country? Surely we can allude to that?

An Leas-Cheann Comhairle: I have allowed the Deputy to allude to the probable genesis of this idea, but to extend it to the extent to which Deputy Norton has sought to extend it is a thing the Chair could not allow.

Mr. Norton: I think you will agree, Sir, that I spent scarcely a minute in referring to this matter, and the Minister's attitude towards the trade unions, I think, necessitated my recalling it. As Deputy McGilligan has pointed out, we had a subsequent declaration by the Minister for Industry and Commerce, at a meeting to which he was invited in his capacity as Minister, foreshadowing legislation affecting trade unions. The Minister's speech on that occasion occasioned grave disquiet amongst the trade union movement, which had every reason to fear that the manner and the matter of the speech indicated the imposition of restrictions on trade unions. Now we have the President coming along some time after that action and that statement by the Minister, indicating that it is desirable to give the Legislature power to enact laws regulating and controlling the exercise of the rights of citizens to form trade unions. One of the reasons given in favour of putting this sentence into this Draft Constitution is that somebody might desire to restrict trade. That is the case for giving the Legislature this power.

The President: I had not trade unions in my mind.

Mr. Norton: The President had not much scope for having anything in his mind.

Mr. MacDermot: What about trusts and anti-trust laws?

Mr. McGilligan: Will “public morality” not cover that?

Mr. MacDermot: Not necessarily.

[1777] Mr. McGilligan: Would “public morality” not govern it?

Mr. MacDermot: I do not think so.

The President: I doubt very much whether “public interest” is not a much wider term.

Mr. McGilligan: Undoubtedly it is a much wider term.

Mr. Norton: The President's mind is revealed in instalments. Probably if we managed to spend until next December on this Constitution, we would then know clearly what the President has in mind.

The President: Read the text.

Mr. Norton: I have read the text very carefully, but I am afraid I cannot follow the President even yet. The President says that the phrase “public order and morality” is not wide enough, that he is not satisfied to allow organisations to be formed subject to the overriding consideration that they must conform to public order and morality——

Mr. MacDermot: Neither is Deputy Norton.

Mr. Norton: ——and that he wants, in addition, to get some further powers and restrictions over the right to form associations and trade unions.

Mr. MacDermot: So does Deputy Norton.

Mr. Norton: Let the President defend his own Constitution. Little as the President knows about the dangers of some portions of it, he at least knows ten times as much as Deputy MacDermot. The President is not satisfied with having inserted in this Article a provision that the formation of associations and unions shall be subject to public order and morality. He says that is not wide enough, and he wants some wider powers for regulating the formation of associations and unions. He, therefore, proposes that he should have power to regulate the formation of associations and unions, and control them in the public interest. Of course, “the public interest” is so wide a term that it might well mean, when translated into [1778] legislative action, that the unions had practically no rights and no powers whatever. The President says, of course, like the just man, “trust me.” The President's whole attitude on this is “trust me.”

Mr. T. Kelly: The just man falls seven times a day.

Mr. Norton: It is a repeating seven in this case. What assurance have the unions that this particular phrase will not be used in such a manner as to enable legislation to be introduced proscribing the right of unions to withdraw their labour; proscribing them alternately from withdrawing their labour in the case of public services, or in the case of transport, or the variety of other industries in which the Government are shareholders? That is the danger which trade unions see in this particular section. The President wants a wider power than that set out at the commencement of this section. Not satisfied with ensuring that the unions must conform to public order and public morality, he wants in addition to ensure that they will be controlled in the public interest. That may mean the withdrawal from the unions of many of the rights which they have got.

The President's statement about its being desirable to interfere in order to avoid restriction of trade, the attitude of the Minister for Industry and Commerce during the transport dispute in Dublin, and the Minister's subsequent intimation that he intended to introduce legislation dealing with the position of unions, because there were too many unions, and that certain other matters required to be adjusted, legislatively, convince the unions that the Government has under contemplation proposals which, if they are to take the form of the utterances to which I have just referred, must inevitably mean the restriction of the rights which trade unions have enjoyed for generations.

Mr. Minch: I do not know exactly whether Deputy Norton is letting loose a hare or a number of hares.

Mr. Norton: It is Deputy McGilligan's amendment, not mine.

[1779] Mr. Minch: But I am referring to Deputy Norton's speech. It is a very able speech indeed, and a very clever one.

Mr. MacDermot: I do not agree.

Mr. Minch: Perhaps the Deputy and Deputy Norton have been quarrelling lately; they may have been shadowboxing. What is the position to be, from the public interest point of view, for instance, if an association or associations have a general strike? I can see that there are needs of definite safeguards for the public interest. At the same time I can see that there may be, from the trade unions' point of view, an anxiety intermingled in it that there may be a restriction of the trade unions' rights. Obviously the public interest must be protected. One has only to go back to 1926 and see what happened in Great Britain, when the whole community was held up by a general strike. If the Government had the power at that time the trouble would never have occurred. If the trade union leaders—one has read a good deal of their statements on it, and some of the biographies afterwards—had realised that Sir John Simon was going to come along and declare it illegal, that general strike would not have taken place. The public would have been saved, and the trade union members themselves would have been saved. Deputy MacDermot says it is better to have a written Constitution, but if you have a written Constitution you must have something in it guaranteeing the public interest in certain eventualities that may arise, as, for instance, a general strike.

Mr. Davin: How would the Deputy deal with a lock-out by employers?

Mr. MacDermot: I think Deputy Norton must be trying to put off the general election until next December, because even from him I have never heard such unblushing repetition as there was in his speeches on this particular amendment. A system of checks and balances does not mean you are to tie yourself up so tightly with red tape that you cannot move hand or foot, and that is the danger which Deputy [1780] Norton seems to have lost sight of. On almost every Article of the Constitution on which he speaks he is advocating that we should tie ourselves up tightly with red tape and bind the Legislature——

Mr. Norton: But you should not muzzle the citizen and handcuff him, as the Deputy is doing.

Mr. MacDermot: Nobody is proposing to muzzle the citizen or to handcuff him. Nobody is introducing a law at the present moment for the restriction of the liberty of an association. What is being done is to say that when we are laying down the fundamental principle of the liberty of association, it is desirable to take note of the fact that the liberties of certain associations may sometimes have to be restricted by law, by the Legislature in its wisdom, with the full democratic consent of a democratic House. Deputy Norton must know that in America, where very important democratic measures had to be carried through by the actual President of the United States, the interests of the people were very gravely endangered by the fact that he found himself tied up with red tape in just the same way that Deputy Norton is trying to tie us up with red tape here.

Mr. Davin: Tied up by Henry Ford and Co.

Mr. MacDermot: Tied up by the Supreme Court interpreting an unduly rigid Constitution.

Mr. Davin: And by Henry Ford and Co.

Mr. MacDermot: Maybe, but also by the Supreme Court interpreting an unduly rigid and detailed Constitution, and it is exactly an unduly rigid Constitution that Deputy Norton is trying to impose upon us here. It was only the merest prudence on the part of those who drafted this Constitution to leave room for such contingencies as may arise in the life of every nation. We must not suppose that every Legislature which is to follow us is to be a Legislature that cannot be trusted. We have no right to adopt that superior attitude to posterity. The Irish people will have just as much right to legislate [1781] for themselves when we have gone as they have when we are here. In any case, Deputy Norton has ruined every particle of plausibility that there might be in his argument by the fact that he himself has put down an amendment restricting a certain kind of association.

Mr. Norton: What kind?

Mr. MacDermot: The profit-making kind.

Mr. Norton: It would be just like Deputy MacDermot not to see the difference between a profit-making undertaking and a trade union movement.

Mr. MacDermot: I see that a profit-making association is an association. I am perfectly well aware that Deputy Norton thinks all members of profit-making associations, if not actually depraved, are well on the road to being depraved; whereas members of every trade union, if not angels, are the next thing to angels. That is not the point of view of everybody, and I for one would prefer to take the view that the possibilities of depravity are about equal in the two cases. What we have to do is to hold the balance fairly between all classes of the community. I do think it is thoroughly possible that associations might arise which did not offend against public morality, and yet which might in the interests of the people have to be restricted. I suggest that Deputy Norton thinks so, too, unless he goes so far as to say that a profit-making association is ipso facto one that offends against public morality.

Dr. O'Higgins: At the beginning I wish to say that if in Deputy MacDermot's opinion Deputy Norton is going to keep this thing going until December, I think Deputy MacDermot is already obviously anticipating a seven years' Parliament, as referred to in the Constitution, and is taking up as much time of the House as if we had seven years to consider it.

Mr. MacDermot: Not by repetition.

Dr. O'Higgins: I know that the Deputy assumes he is never wrong and I will not waste my time contradicting [1782] him. My simple view of a Constitution is that it is a document which lays down clearly the rights of citizens. It is a document which declares beyond yea or nea what rights they are to have, and it should not be utilised in order to lay down for all time a mass of restrictions on the liberty of the people. If it is the President's intention, as it is obviously, that it might be necessary by law at some time, either in the near future or in the distant future, to restrict the right of citizens to form unions and associations, then, why have anything in the Constitution giving the citizens the right to form associations and unions when, in fact, the next clause asserts the right of the Government to take that right from the people? Is not the honest way and the decent way to do it to cut out the reference to the people having any right in that direction, and to leave them dependent on whatever rights the law may or may not give them in the future? That is what we are doing here. One step forward, three steps back. That is characteristic of every Article in this Constitution that gives any right to anybody. In big print on the top of the Article you proclaim the rights you are giving, but in little print, in sub-sections you take back every one of these rights, with the characteristic exception of the rights given to the President. When dealing with the rights and powers to be given to the President, then all the sub-sections are devoted to making it impossible ever to curb those rights; making it impossible even for the courts to judge that individual and making it impossible, even for the Parliament of the people to do so. But when dealing with trade unions or with the individual citizen, or the property of individual citizens, then a right is declared, but underneath that is laid down a whole lot of powers that are being given to an Executive either to limit, to restrict or to filch those rights from the individual or from the union.

If there is one thing which should not be in a Constitution it is meaningless paragraphs that are so much frothy humbug. The beginning of this Article and the subsequent sub-sections merely enshrine in a Constitution, [1783] which should live for a considerable number of years, a piece of Parliamentary humbug and chaff. Apparently, the whole test of the possibility of abuse or misuse or otherwise of powers that are being given over the people's rights is to be purely the President's personal opinion. It is “I,” “I,” “I” since we started to consider this document. The Executive Council or the Parliament were never mentioned. It is “I will consider this” or “I will consider that.” It has been the first person singular all the time.

The President may be and, certainly in his own opinion, is the most just and reasonable man that ever pulled on trousers, but this Constitution is a document that is meant to live and to last, and it will be worked under other Presidents and under other Executives of all types, politically venomous, politically vindictive, anti-the individual right, and anti-the right of unions. Are you when you start out in the Constitution to assert the right of people to form associations and unions, in the same Constitution to make it not only possible but to invite any bigoted and narrow-minded Executive in the future to formulate laws to restrict and to rob individuals of the right you proposed to give in the earlier part? Is not that obvious, when you start off by setting out in big print that citizens have the right to form unions and associations, but as an afterthought consider that is a dangerous right to give and put in, in small print, these words: “subject however to whatever laws may be passed from time to time.”

If the President has that suspicion, that lack of trust and lack of confidence in Irish associations, in Irish trade unions, and in Irish democracy, then cut out the whole lot and define no right in one breath which you take away in the next breath. It is this double shuffle, the advertisement in the shop window “good,” and the article as it crosses the counter “rotten” that is the characteristic feature of the Constitution from beginning to end. The first portion of it, referred to as “the just and reasonable portion,” which will be quoted from Fianna Fáil platforms, is that in which you have [1784] enshrined the right of citizens to form associations and unions. There will be no reference to the next features. There was not a colleague of the Deputies who spoke during the last two weeks who did not refer to this document as the charter of liberty. I do not know any piece of legislation that ever passed through this House—and there were times, past and present, when harsh and restrictive measures had to be passed—that contained more restrictions; that so limited the powers and filched the rights of individual and organisations as this great charter of liberty.

Mr. McGilligan: I want to say a last word on this. A statement has been made that public order and public interest are not the same thing. We ought to have some exposition given by people who assert that there is a difference. I want to hear how one differs from the other. If there is any difference, it is for those who are bringing forward this document to explain where the difference lies. We have the declaration that the State guarantees the right to form unions and associations, and if the only limitation on that right is that it should be “subject to public order and morality,” it will be the courts will determine whether any limitation was put upon the right as caught by the phrase “public order and morality.” There are two changes: the extent of the possible limitation of the right has been extended, and more onerous still, the person to determine the meaning of the phrase “in the public interest” will no longer be a judge but will be a member of the Executive of the day.

The President: I do not know that there is any use in going over the same ground. It is quite clear that if I speak 50 times, we will have 50 Deputies going over the same ground. We had Deputy Norton talking as if all these terrible things, which he apprehends could be done in future, could not be done to-day. Why are they not being done? In future the Legislature will have to look after the public interest, as it is doing to-day. Are we going to shackle the Legislature in the future [1785] in a way in which it is not shackled to-day, and in which it would be most unwise to shackle it? We are providing for that freedom of action to work in the public interest and to safeguard the public interest in the future which the Legislature has to-day—that and no more. As to “public morality,” the lawyers on the opposite benches, I understand, are accurate enough—it has been pretty well defined. “Public interest” is a wider term, as I understand it. Public interest would enable the Legislature to regard the good of the community in any direction. Whether the narrower interpretation, as I understand it, of “public morality” would enable them to do that or not I do not know. I think the Legislature ought to be enabled in its own judgment to decide and not the courts. The courts have to interpret the laws. The courts have not placed upon [1786] them the responsibility that the Legislature has. The Legislature has the responsibility of working in the public interest and of seeing, in the passing of its laws, that the rights of the individual, as an individual, and the rights of the community, as a community, do not conflict and are properly co-ordinated. That is the duty of the Legislature; and what we want to see is that in future the Legislature will not be so restricted that it will not be able to function properly.

Mr. McGilligan: Why not take the phrase “public order and morality” out of the Preamble and put it in this? That can be completely ousted by this narrower phrase. Why not be decent about it and take out “public order and morality”?

Question— “That the lines proposed to be deleted stand”—put.

The Committee divided: Tá, 44; Níl, 31.

Aiken, Frank.

Allen, Denis.

Bartley, Gerald.

Boland, Gerald.

Boland, Patrick.

Brady, Seán.

Briscoe, Robert.

Carty, Frank.

Concannon, Helena.

Cooney, Eamonn.

Corkery, Daniel.

Crowley, Timothy.

Derrig, Thomas.

De Valera, Eamon.

Flynn, Stephen.

Fogarty, Andrew.

Goulding, John.

Harris, Thomas.

Kehoe, Patrick.

Kelly, James Patrick.

Kelly, Thomas.

Kilroy, Michael.

Kissane, Eamonn.

Little, Patrick John.

Lynch, James B.

MacDermot, Frank.

MacEntee, Seán.

Maguire, Ben.

Moore, Séamus.

Neilan, Martin.

O Briain, Donnchadh.

O'Grady, Seán.

O'Reilly, Matthew.

Pearse, Margaret Mary.

Rice, Edward.

Ruttledge, Patrick Joseph.

Ryan, James.

Ryan, Martin.

Ryan, Robert.

Sheridan, Michael.

Smith, Patrick.

Victory, James.

Walsh, Richard.

Ward, Francis C.

Níl

Anthony, Richard.

Beckett, James Walter.

Bennett, George Cecil.

Cosgrave, William T.

Desmond, William.

Dockrell, Henry Morgan.

Doyle, Peadar S.

Everett, James.

Fitzgerald-Kenney, James.

Holohan, Richard.

Keating, John.

Keyes, Michael.

McFadden, Michael Og.

McGilligan, Patrick.

McGovern, Patrick.

McMenamin, Daniel.

Minch, Sydney B.

Morrisroe, James

Morrissey, Daniel.

Murphy, James Edward.

Murphy, Timothy Joseph.

Nally, Martin.

Norton, William.

O'Higgins, Thomas Francis.

O'Leary, Daniel.

O'Neill, Eamonn.

O'Sullivan, John Marcus.

Pattison, James P.

Reidy, James.

Rice, Vincent.

Roddy, Martin.

Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Doyle and Bennett.

[1787] Motion declared carried.

Mr. Norton: I move amendment No. 125:—

At the end of Section 6, sub-section 1º, iii, line 5, after the word “right” to insert the words “provided that nothing contained in such laws may limit or restrict the rights and liberties enjoyed by the citizens previous to the enactment of this Constitution”.

The object of this amendment is to enshrine in the Constitution a provision that whatever type of laws may be introduced to provide for the regulation and control of the public interest and of the right of citizens to form associations and unions, nothing contained in such laws may limit or restrict the rights and liberties enjoyed by the citizens previous to the enactment of this Constitution. I take it, for instance, that the President would agree that the existing system of society in respect of legislative provision for regulating the establishment and control of associations and unions gives no grounds for concern so far as the State is concerned. The legislation which is in existence at the moment has been on the Statute Book for quite a long time, and, so far as the public is concerned, there has been no demand for a revision of that legislation in a restrictive sense. The President endeavours to justify this section of Article 40, and says that it may be desirable in the public interest to enact legislation to provide for the regulation and control of associations and unions. The object of this amendment is to ensure that such legislation as may be enacted will not limit or restrict the rights and liberties enjoyed by the citizens previous to the enactment of this Constitution. That amendment would ensure to the citizens that whatever rights they have got will be continued to them, even after the proposed laws are passed, and citizens will be assured that their rights cannot be invaded by any legislation that may be subsequently enacted.

The President: I am sure Deputy Norton is not serious in asking that we should stabilise the present situation [1788] without knowing what the future may hold. We cannot do that. It is absolutely ridiculous that the Legislature of the nation should be tied up in such a way that it could not in the future act in the public interest. According to the Draft Constitution the citizens have preserved to them the right to form associations and unions.

Mr. Norton: That has nothing to do with the amendment. I want to prevent any restrictions of the citizens rights.

The President: The Article gives powers of a very wide character.

Mr. Norton: In respect of trade unions, what are these powers?

The President: To take any action that may be necessary in certain directions. In regard to this amendment I do not think Deputy Norton himself would for a moment say that he was going to deal with the future and tie up the Legislature. I do not think he would be prepared to say: “We cannot take any steps for the future no matter how the future may change; we have got to do as we are doing to-day.” That is a ridiculous proposal.

Mr. Norton: It seems to me that almost every effort to preserve any right or liberty is a ridiculous effort according to the President. The mentality of the President is “trust the President, the one just man.”

The President: You are trusting the people and the people's representatives.

Mr. Norton: That was a great safeguard in Germany.

The President: There is no other.

Mr. McGilligan: Then wipe out the courts completely.

The President: The courts can be made subject to the Legislature if the people want it.

Mr. McGilligan: The President is not doing it in this Draft Constitution.

Mr. Norton: We have the interesting declaration of the President now [1789] that it is ridiculous to ask for the preservation of rights and liberties such as citizens enjoy to-day, that in future we must be content with all the restrictions contained in this Constitution and, if we are still uneasy, then we must trust the Executive of the day.

The President: The Legislature of the day, and the people.

Mr. Norton: The President is splitting hairs on the difference between the Executive of the day and the Legislature. What does the Legislature mean? Does not the President know that he can simply sit in his seat while any particular amendment is being discussed; does he not know that he need not offer the slightest shred of opposition to any amendment and that all he need say is that he is standing by the Draft Constitution? Then, if a division is called, his loyal legionaries will walk into the Lobby and make sure that the President's viewpoint is upheld in the manner prescribed by the Standing Orders of the House. What is the use of trying to split hairs on the difference between the Legislature and the Executive of the day? Do we not all know that the Executive of the day, commanding a majority, is capable of putting through any type of legislation? When you talk about the Legislature, what you really mean is the majority Party in the Legislature, because it is the all-powerful Party so far as the Legislature is concerned.

A minority Opposition, no matter how virtuous their viewpoint may be, or how laudable their objective, could never hope to pass any legislation protecting the rights or liberties of the people unless they had the approval of the Government. So when you come to examine the Legislature and ascertain what exactly it means, you are driven to the conclusion that for the purpose of the enactment of legislation, while the Legislature may either approve or criticise, the fact remains that in the last resort the decision rests with the Executive Council, which in turn means the Party caucus. In future a body of that kind, acting in that way, may be able to come before the House with proposals for [1790] legislation which may seriously affect the rights and liberties that trade unions enjoy to-day under existing statutes.

The President says that my amendment would stereotype the existing position and prevent the introduction of legislation dealing with the position of associations and unions in future. Of course, the President knows perfectly well that it could do no such thing. There would be nothing to prevent the President introducing new laws dealing with the position of associations and unions; but my amendment would prevent him enacting in any of these laws a provision which would give the citizens less rights or less liberties than they have to-day. The President could, in his new legislation, maintain their existing rights and liberties and give them more rights and liberties and more responsibility or less responsibility; but my amendment would ensure that he could not give the citizens less rights or less liberties than they have to-day. Is there anything unreasonable in asking that? This Draft Constitution is taking us into uncharted seas. It is taking the trade unions into uncharted seas where they do not know what is in store for them.

The President: Do they know at present?

Mr. Norton: They do know where they stand at present.

The President: And they will stand precisely in the same position afterwards.

Mr. Norton: Let me take this whole Article which deals with public order and morality, plus control in the public interest. Let me take these three points together with the speech made by the President on the last section and the speech made by the Minister for Industry and Commerce. I say that there is grave ground for fear that the position in the future may not be so satisfactory as it is to-day. I want, therefore, to ensure, when the position is thrown into the melting-pot, that at least we will be able to say that whatever changes are to be made they will not give the unions less rights and less liberties than they [1791] enjoy to-day. That, whatever rights they have to-day, they will be anchored to them and no Executive Council anxious to restrict their powers will be able to invade such rights and liberties.

Notice taken that 20 Deputies were not present; House counted and, 20 Deputies being present,

The President: The Deputy was talking about an invasion of rights. The whole body of laws as it exists is being taken over by this Constitution. The passage of this Constitution does not make any change in that respect. What the Deputy wants us to do is to tie our hands now and go blindfolded and tied into the future. Does the Deputy want the same sort of position with regard to other associations? It is the duty of the Legislature [1792] to look after the interests of all sections of the community and it would be ridiculous for any responsible body of people to agree to a suggestion such as is made by Deputy Norton, that they should now tie their hands and go blindfolded into the future. There is no invasion in this Constitution. If the Deputy says I want to make something out of this Constitution so as to give a special position to certain organisations at the present time, then he is on quite a different footing, but we are not touching that. That is a matter that can be dealt with quite as freely after this Constitution is passed as it can now and, consequently, no one in his senses, with any sense of responsibility whatever, would accept that proposal.

Question put:—“That those words be there added.”

The Committee divided: Tá: 21; Níl: 44.

Anthony, Richard.

Corish, Richard.

Desmond, William.

Dockrell, Henry Morgan.

Doyle, Peadar S.

Everett, James.

Fitzgerald-Kenney, James.

Hogan, Patrick (Clare).

Keating, John.

Keyes, Michael.

McFadden, Michael Og.

McGovern, Patrick.

Minch, Sydney B.

Morrisroe, James.

Morrissey, Daniel.

Murphy, Timothy Joseph.

Nally, Martin.

Norton, William.

O'Neill, Eamonn.

O'Sullivan, John Marcus.

Pattison, James P.

Níl

Aiken, Frank.

Allen, Denis.

Bartley, Gerald.

Boland, Gerald.

Boland, Patrick.

Bourke, Daniel.

Brady, Seán.

Briscoe, Robert.

Carty, Frank.

Concannon, Helena

Cooney, Eamonn.

Corkery, Daniel.

Crowley, Timothy.

Derrig, Thomas.

De Valera, Eamon.

Flynn, Stephen.

Fogarty, Andrew.

Goulding, John.

Harris, Thomas.

Kehoe, Patrick.

Kelly, Thomas.

Kilroy, Michael.

Kissane, Eamonn.

Little, Patrick John.

Lynch, James B.

MacDermot, Frank.

MacEntee, Seán.

Maguire, Ben.

Moore, Seamus.

Neilan, Martin.

O'Brian, Donnchadh.

O'Grady, Seán.

O'Reilly, Matthew.

Pearse, Margaret Mary.

Rice, Edward.

Ruttledge, Patrick Joseph.

Ryan, James.

Ryan, Martin.

Ryan, Robert.

Sheridan, Michael.

Smith, Patrick.

Victory, James.

Walsh, Richard.

Ward, Francis C.

Tellers:-Tá: Deputies T. Murphy and Everett; Níl: Deputies Little and Smith.

[1793] Question declared lost.

Progress reported.